The Supreme Court’s Doctrine of No Construction in Alberta v. University of Calgary

• Author: Cameron Hutchison
• Date: December 21, 2016

In Alberta v. University of Calgary the employer university refused employee access to information about herself on the basis of solicitor client privilege. The university then refused the privacy commissioner’s request to review that information which, under Alberta access to government information law, must be disclosed to the commissioner despite “any privilege of the law of evidence” being asserted. A majority of the Supreme Court sided with the university in holding that “any privilege of the law of evidence” does not include solicitor client privilege. If the commissioner’s office has a right to review claims of solicitor client privilege, the majority reasoned, the legislation must specifically say so.

The case is highly problematic for its policy implications (see here). For lawyers, and statutory interpretation aficionados like myself, there is yet another dimension of fascination. How is it possible that the specific wording “any privilege of the law of evidence” could not include solicitor client privilege? The answer is not simply that the court failed to apply the modern rule of statutory interpretation or even that it adopted a rule of strict construction. Either one of these approaches would have led inexorably to the opposite result. Rather the problem is more basic and problematic than that: the majority simply failed to construe the meaning of the language “any privilege of the law of evidence.”

Not Strict Construction

The concept of “strict construction” refers to the interpretation of legislative language in a narrow sense. If after a narrow reading there is ambiguity as to whether a tax, penalty or punishment should apply in a given case, strict construction gives the benefit of the doubt to the individual, not the state.

Canadian courts no longer apply strict construction to the interpretation of statutes, at least not in its pure form. Rather, it survives as a tiebreaker in favor of an accused in cases where a full construction of criminal legislation using the modern rule (discussed below) still leaves the meaning ambiguous as applied to a given case.

In either form, strict construction is premised on at least a tentative understanding of the language at issue. To interpret language narrowly still requires an act of interpretation. And to determine if the application is ambiguous requires a comparative reference point to that which we think might be included under the rule.

How would one strictly construe “any privilege of the law...